A cleverly-written law in Texas takes effect today that reduces civil penalties for doctors who perform medically necessary abortions that lawmakers say is a step toward future bipartisan efforts to address the state’s abortion ban.
House Bill 3058 allows physicians who perform abortions for specific situations in Texas if and when they are sued under Senate Bill 8. SB8 was passed in 2021, which allows private citizens to sue anyone who performs or provides abortion assistance and potentially collect a $10,000 “bounty.”
Under HB3058, doctors who provide abortions to patients whose water breaks too early or have ectopic pregnancies may seek an affirmative defense if sued under SB8.
“Women should not be concerned about going to the hospital when they have a pregnancy emergency,” says Texas State Representative Ann Johnson, a Democrat in Houston, who authored the bill.
Johnson says that after SB8 was passed, physicians had no choice if a pregnant patient was in medical distress unless the situation was dire.
“They were having to wait until the mother was in crisis; either serious bodily injury, which effectively means losing an organ or at risk for death,” says Johnson. “So what we’ve been seeing is women suffering long term consequences because of the complete inability to perform modern medical interventions because of a politically-motivated piece of legislation.”
The law isn’t a solution to the ban but Johnson says it does loosen the grip the state has on medical providers’ ability to perform medically necessary abortions.
“We have reached an agreement that if the reason is an ectopic pregnancy or a ruptured membrane, then medical professionals can act immediately. Doctors now have an affirmative defense, and that’s a great thing,” says Johson.
While members of the Texas Legislature say HB3058 is a step in the right direction, reproductive rights advocates emphasize the bill does not remove the potential consequences faced by physicians sued under SB8. The abortion ban in Texas still allows physicians to face civil litigation for providing abortions. If sued, physicians will still risk incarceration, more than $100,000 in fines, and potential loss of their medical license, but are now permitted to use the HB3058 exception in their defense.
“HB3058 addresses this situation but really incompletely. It doesn’t address criminal consequences,” says Elisabeth Smith, Director of State Policy and Advocacy at the Center for Reproductive Rights. “Even in the two situations that the law does address — ectopic pregnancy and premature membrane rupture — a provider of abortion could still face criminal consequences.”
Smith says that the passage of HB3058 suggests the Texas Legislature and Governor Greg Abbott understand there’s a problem with the state’s existing abortion ban.
“It doesn’t stop the lawsuit, but says that in court you can have an affirmative defense, and that’s really important because that’s an exception to the ban. It’s always a good thing to lessen the penalties on providers,” she explains.
Despite bipartisan support of HB3058, the state GOP says it will not change existing policies on abortion but rather dispel fake news.
“HB3058 does not change existing Texas law on abortion, which already allows for the treatment of miscarriage, ectopic pregnancy, and conditions that threaten the life of the mother,” says James Wesolek, Communications Director for the Republican Party of Texas. “HB3058 was passed in response to disinformation campaigns from journalists who deliberately misrepresented current law.”
Although the abortion ban and “bounty” law have not been overturned and physicians can still be sued for providing abortions, the passage of HB3058 has created a route for lawmakers to address the issue and pass policies that will have lifesaving impacts in Texas.
“In the last session, we saw numerous bills passed to address the issue of abortion and none of them got a hearing,” says Johnson. “What we did with HB3058 was address the issue of the consequences of the medical community.”
Johnson collaborated with Republican State Senator Bryan Hughes, the lawmaker behind the abortion ban, and deliberately did not use the term “abortion” in HB3058 because of its subjective meaning.
“There’s been a refusal to acknowledge that the term ‘abortion’ has different meanings for different people. In the medical community, it means terminating a pregnancy regardless of the reason. In the pro-life community, it means termination of a healthy elective pregnancy,” she says.
Ultimately, Johnson says the healthcare of pregnant people in Texas should not be treated as a partisan issue and the passage of HB3058 demonstrates that bipartisanship is possible, while also deferring to the expertise of medical professionals.
“I understand that there are doctors who want more out of this legislation. They want the Texas Legislature to get out of their way and say ‘we trust you to make the best decision,” Johnson says. “I want the doctor thinking about the tools they have available to provide the best medical care, not thinking about what a politician in Austin might say.”
Johnson is hopeful that HB3058 will bolster bipartisan efforts in Texas and across the country that will lead to women’s bodily autonomy and encourage voters to stay engaged in the issues.
She poses a scenario where a woman is seated in the reception at her doctor’s office. The door opens, then her name is called.
“Do I get to go in by myself?” she asks. “Or do my Governor, Lieutenant Governor, and Congressman get to go with me?”
